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2012 DIGILAW 1266 (MP)

Tilak Pradhan v. A. K. Haritwal

2012-12-06

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT : S.K. Gangele :- Appellants/plaintiffs have filed this appeal against the judgment and decree dt. 30-3-2005 passed by the Additional District Judge, Gwalior in Civil Suit No. 2A/2004. 2. Umacharan Pradhan had four sons; Prakashchandra, Kailashchandra, Avinashchandra and Vishwas. Kailashchandra died unmarried. Avinashchandra had a son namely Yash Pradhan. Vishwas had three sons; Ajit, Atul and Akshay. Prakashchandra had wife Shyamlata and three sons ; Amar, Achal, Tilak and three daughters; Sadhna, Mamta and Alka. Amar died and he had four daughters. The plaintiffs are the son and daughters of late Prakashchandra. Defendant No. 1 is said to have got some rights in the property on the basis of agreement to sale executed by Avinash vide Ex.D/1 in regard to sale of the land/Defendant No. 2 is the son of defendant No. 1. During the pendency of the suit, defendant No. 2 vide three registered sale deeds sold the said land in favour of defendant No. 2(a) vide registered sale deed dt. 15-10-1996. 3. Defendant No. 6 is the wife of Prakashchandra and defendant No. 7 -Achal Pradhan is the son of Prakashchandra. Similarly, Defendant No. 8 is the wife of Amar Pradhan. Defendants No. 9, 10 and 11 are daughters of Amar Pradhan s/o Prakashchandra. 4. The plaintiffs pleaded in the suit that they are the joint owner along with defendants No. 4 to 9 of the land of Survey Nos. 747, 748, 792, 808 and 809 total area 11 bigha 8 biswa situate at Purani Chhavni, Pargana and District Gwalior. Earlier Umacharan Pradhan was the owner of the land. After his death, his four sons Prakashchandra, Kailashchandra, Avinashchandra and Vishwas became owners of the land. There was a partition amongst these brothers in regard to the property of the father Umacharan Pradhan before the Tahsildar on 24-5-1976 and the area of the land Khasra Nos. 792, 808 and 809 came in the share of Prakashchandra. After his death, his three sons Amar Pradhan, Achal Pradhan and Tilak Pradhan became owners of the land and their names were recorded in the revenue record. Defendants No. 2, 3 and 4 are the daughters of Prakashchandra Pradhan, hence, they have the equal share in the land. Defendants No. 7 to 9 became owner of the land of Amar Pradhan. 5. Plaintiffs further pleaded that they had been cultivating the land since then. Defendants No. 2, 3 and 4 are the daughters of Prakashchandra Pradhan, hence, they have the equal share in the land. Defendants No. 7 to 9 became owner of the land of Amar Pradhan. 5. Plaintiffs further pleaded that they had been cultivating the land since then. However, defendants No. 1 and 2 on 14-8-1993 came on the spot and threatened the plaintiffs that they would sale the land, otherwise their land would be taken forcefully. Thereafter, between 14-8-1993 and 15-8-1993, defendants No. 1 and 2 along with others destroyed the crops. A report with regard to that effect was lodged at the Police Station Purani Chhavni. During pendency of the suit, by way of three registered sale deeds dt. 15-10-1996, the defendant No. 2 sold the suit land in favour of defendant No. 2(A). The plaintiffs prayed for the relief of declaration that they are the owners of the suit land and decree of permanent injunction against the defendants No. land 2 and 2(A) be passed and a direction be issued that the aforesaid defendants No. 1, 2 and 2(A) shall not interfere in the possession of the plaintiffs. 6. During pendency of the suit, the plaintiffs filed an application in regard to amendment of the suit under Order VI, Rule 17, Civil Procedure Code and they sought the amendment of relief clause of the plaint to the effect that the illegal possession which had been taken by the defendants No. 1, 2 and 2(A) over the land be removed and after possession, a decree of permanent injunction be also issued in favour of the plaintiffs. 7. The trial Court vide order dt.24-8-2004 rejected the application on the ground that if during trial of the suit it is found that the plaintiffs are in possession over the land, then the possession would be delivered back in favour of the plaintiffs and for the aforesaid purpose, there is no necessity to take evidence. 8. The defendant No. 1 in his written statement denied the pleadings of the plaintiffs and pleaded that the suit filed by the plaintiffs is not maintainable without the relief of decree of possession in view of section 34 of the Specific Relief Act. The defendant No. 1 further denied that the plaintiffs are the owner of the land. He pleaded that defendants No. 1 and 2 vide an agreement to sale dt. The defendant No. 1 further denied that the plaintiffs are the owner of the land. He pleaded that defendants No. 1 and 2 vide an agreement to sale dt. 29-4-1976 and 26-11-1977 had got right of ownership of the land and the possession had also been delivered to the defendants No. 1 and 2. Hence, they perfected their title. He further pleaded that the amount of agreement was also paid to the defendants. He further denied the fact that he had taken possession of the land and admitted the fact that during the pendency of the suit vide registered sale deeds dt. 15-10-1996 defendant No. 2 sold the land in favour of defendant No. 2(A). He in his counter-claim has submitted that the defendant No. 1 has perfected his title on the basis of adverse possession because he was in possession over the land since 29-4-1976 and 26-11-1977. Defendant No. 2(A) filed a separate written statement and he pleaded that the suit of the plaintiffs is not tenable because no relief of possession has been sought. He further pleaded that on the basis of agreement to sale dt. 29-4-1976 and 26-11-1977, the defendants No. 1 and 2 became the owner of the land and the possession was delivered and thereafter defendant No. 2 had sold the land in favour of defendant No. 2(A). He further pleaded that possession of the land was also handed over in favour of defendant No. 1 In his counter-claim, he pleaded that the plaintiffs have no right to take possession over the land and the answering defendant became owner of the land on the basis of the sale deed. Defendant No. 2(B) also filed a counter-claim and pleaded that defendants No. 1 and 2 became owner of the land after execution of the agreement to sale and thereafter on the basis of sale deed answering defendant became the owner of the land. 9. The State in its reply did not oppose the plaint. Plaintiffs filed separate reply to the counter-claim. 10. The learned trial Court framed seven issues. Issue No. 1 is in regard to ownership of the land. Issue No. 2 is that whether the defendants had taken the possession of the land. Issue No. 4 is that whether the suit for declaration is maintainable or not. 11. Plaintiffs filed separate reply to the counter-claim. 10. The learned trial Court framed seven issues. Issue No. 1 is in regard to ownership of the land. Issue No. 2 is that whether the defendants had taken the possession of the land. Issue No. 4 is that whether the suit for declaration is maintainable or not. 11. Before the trial Court, the plaintiffs led oral evidence of four witnesses; Tilak Pradhan (P.W.1), Lalaram (P.W.2), Suresh Kumar (P.W.3) and Yusuf Khan (P.W.4) and also produced documentary evidence from Ex.P/1 to P/47. Defendants produced eight witnesses and also produced documentary evidence from Ex.D/1 to D/43. 12. After trial, the trial Court has held that the plaintiffs are the co-owners of the land and declared title of the plaintiffs. However, the trial Court further held that the plaintiffs were not in possession over the land, hence, the suit is not maintainable because no relief of possession was claimed for. The trial Court further rejected the counter-claim of the defendants to the effect that they perfected their title on the basis of adverse possession. The trial Court dismissed the suit on the ground that because the relief of possession has not been claimed by the plaintiffs, hence, the suit of declaration is not maintainable. 13. Shri K. S. Tonmar, learned senior counsel appearing on behalf of the plaintiffs/appellants has contended that the trial Court has committed an error of law in dismissing the suit. He contended that the plaintiffs were in possession over the land. The defendants No. 1 and 2 did not acquire any title in the land on the basis of agreement to sale. He further pleaded that because no title accrued to the defendants No. 1 and 2, hence, the sale deeds executed by them in favour of defendants No. 2(A) and 2(B) are null and void. They are also null and void on the basis of principle of lis pendens. He further pleaded that a fraud has been committed by defendants No. 1, 2, 2(A) and 2(B), hence, the suit has to be decreed. He also argued that the amendment application was wrongly rejected by the trial Court in regard to plea of possession and it was the duty of the trial Court to grant a relief of possession even if it was held by the trial Court that the plaintiffs were not in possession. 14. He also argued that the amendment application was wrongly rejected by the trial Court in regard to plea of possession and it was the duty of the trial Court to grant a relief of possession even if it was held by the trial Court that the plaintiffs were not in possession. 14. Learned senior counsel further argued that the counter-claim of the defendants was dismissed, hence, without filing regular appeal against the dismissal of counter-claim, the oral argument is not permissible neither the cross objection is permissible. He further submitted that the cross objection filed by the defendant is barred by limitation. In support of his contentions, he relied on the following judgments :- (i) State of Bihar vs. Dukhulal Das and another, AIR 1962 Patna 140. (ii) Dasondhi Ram and another vs. Kaka Ram and others, AIR 1966 Himachal Pradesh 66 (iii) Babusingh vs. Godawari, AIR 1929 Nagpur 361 (iv) Ramlal and others vs. Rewa Coalfields Ltd., 1962 MPLJ (S.C.) 602 = AIR 1962 SC 361 (v) Manhargiri Rajgiri Goswami & another vs. District & Sessions Judge, Valsad, AIR 2012 Gujarat 137. (vi) Lanka Venkateswarlu vs. State of M. P., 2011(3) MPLJ (S.C.) 135 = AIR 2011 SC 1199 (vii) Perumon Bhagvathy Devaswom Perindu Village vs. Bhargavi Amma, 2009(1) MPLJ (S.C.) 510 = AIR 2009 SC (Supp) 886 (viii) Mst. Rukhmabai vs. Lala Laxminarayan and others, AIR 1960 SC 335 (ix) Kalyan Singh vs. Vakil Singh and others, 1990 MPJR 177 (x) 2004 MPHT (4) 493 (xi) Dhanpal Balu Lhawale and others vs. Adagouda Nemagouda Patil, (2009) 7 SCC 457 . 15. Contrary to this, Shri R. D. Jain, learned senior counsel appearing on behalf of the defendants No. 2(A) and 2(B)/respondents No. 3 and 4 has submitted that the suit filed by plaintiffs/appellants without the relief of possession is maintainable and it has rightly been dismissed. He further submitted that the execution of the agreement to sale (Ex.D/1) is proved and the possession was also delivered in consequent thereof. Hence, the defendants No. 1 and 2 became owner of the land. Subsequently, they had sold the suit land in favour of defendants No. 2(A) and 2(B). Hence, it was obligatory on the part of the trial Court decree the counter-claim of the defendants. Hence, the defendants No. 1 and 2 became owner of the land. Subsequently, they had sold the suit land in favour of defendants No. 2(A) and 2(B). Hence, it was obligatory on the part of the trial Court decree the counter-claim of the defendants. He further pleaded that the possession of the defendants was found by trial Court when the application for grant of temporary injunction was rejected, which was affirmed upto the Hon'ble Supreme Court. He further argued that Amar Pradhan and Tilak Pradhan had received an amount of Rs. 55,000/- by various cheques and the daughters of Prakashchandra had relinquished their claim and defendants No. 8 to 11 did not file their written statements. Learned senior counsel further argued that the defendants have also perfected their title on the principle of tenancy right in accordance with the provisions of section 169 of M. P. Land Revenue Code. In support of his contentions, learned senior counsel relied on the judgment of the Hon'ble Supreme Court in the case of Vinay Krishna vs. Keshav Chandra and another, reported in AIR 1993 SC 957 . 16. Shri H. D. Gupta, learned senior counsel appearing on behalf of defendants/respondents No. 1 and 2 has contended that the agreement to sale was executed and thereafter the possession was also delivered. Since then the defendants were in possession over the suit land. Hence they perfected their title on the basis of adverse possession also. He further submitted that the suit is barred by limitation and also the defendants have perfected their title on the ground of adverse possession. 17. P.W.l-Tilak Pradhan in his statement deposed that the suit land is situate on Purani Chhavni Block Ghatigaon and the aforesaid land is of the ownership of his forefathers. Original owner of the land was Umacharan. After his death, it was devolved to his four sons and thereafter the land was recorded in the name of his father and uncle by the order of Tahsildar. There was a partition before the Tahsildar vide order dt. 24-5-1976. The land was recorded in their names in the khasra and from Samvat 2031 to 2034, 2025 to 2030 the possession of the plaintiffs was recorded. Bhu-Adhikar Pustika of the land was also issued in favour of the plaintiffs. A case of ceiling was also registered against him and the competent authority passed an order dt. 17-6-1993. 24-5-1976. The land was recorded in their names in the khasra and from Samvat 2031 to 2034, 2025 to 2030 the possession of the plaintiffs was recorded. Bhu-Adhikar Pustika of the land was also issued in favour of the plaintiffs. A case of ceiling was also registered against him and the competent authority passed an order dt. 17-6-1993. The Civil Judge Class II Gwalior in Civil Case No. 185A/1971 has also passed a judgment and decree (Ex.P/18) in favour of the plaintiffs. The succession certificate was also issued. He further deposed that he lodged an FIR at the police station Purani Chhavni (Ex.P/25). He further deposed that during the pendency of the suit Defendant Nos. 1 and 2 vide sale deeds dt 14-10-1996 sold the land of area 9 bigha 4 biswa of Survey Nos. 792, 808 and 809 and the land of Survey Nos. 747 and 748 as pleaded by the defendant No. 2 (B) that it was sold to her, however the seller had no right. 18. P.W.2-Lalaram deposed that he was residing at Purani Chhavni since birth and he knows Tilak Pradhan and his family and the land of Prakash Chand Pradhan and his three sons and three daughters and mother at Purani Chhavni, Gwalior. The land is in front of Maruti Show Room and the plaintiffs were in possession of the land and he had worked as labourer in the field and some time ploughed the land by tractor in the year 1990. 19. P.W.3 - Suresh Kumar in his evidence deposed that he was residing one furlong away from the land and he had worked as labourer over the land. On 14-8-1993 at around 1.30 or 2.00 O'clock, Dr. Haritwal and 4-5 persons came and Dr. Haritwal advised the plaintiff Tilak Pradhan to sale the land when he refused to do so, he threatened of dire consequences and thereafter he along with other persons destroyed the crops over the land. He further deposed that he had been working in the fields of Mr. Pradhan. 20. Yusuf Khan (P.W.4) in his evidence deposed that Tilak Pradhan is the owner of the land and uncle of Tilak Pradhan had sold 21/2 bigha of land to Dr. Haritwal. Dr. Haritwal also forced Tilak Pradhan to sale the land, but he refused to do so. 21. Pradhan. 20. Yusuf Khan (P.W.4) in his evidence deposed that Tilak Pradhan is the owner of the land and uncle of Tilak Pradhan had sold 21/2 bigha of land to Dr. Haritwal. Dr. Haritwal also forced Tilak Pradhan to sale the land, but he refused to do so. 21. On behalf of the defendants, Defendant No. 2 (A) Ullas Gupta in his evidence deposed that the suit land was received by Dr. Atul Haritwal from Tilak Pradhan, Amar Pradhan; Achal Pradhan and heirs of Amar Pradhan under the contract of specific performance. On 29th April 1976, Avinash Chandra Pradhan entered into contract of sale of Vi share of Survey Nos. 747 and 748 in a consideration of Rs. 90,000/- (Ex.D/1) and also received Rs. 25,000/- as advance. Similarly, Amar Pradhan, Achal Pradhan and Tilak Pradhan entered into an agreement to sale of the land of Survey Nos. 792, 808 and 809 for a consideration of Rs. 55,000/- on 26-11-1977 (Ex.D/2). He also received Rs. 10,000/-as advance. He had handed over the possession of the land. On 19-7-1992, Tilak Pradhan again entered into an agreement and agreed to sale ¼ share of the land for the consideration of Rs. 55,000/- and he received Rs. 45,000/- as advance. He further deposed that the land of Survey Nos. 792, 808 and 809 was in possession of Atul Haritwal and the same was purchased by him by registered sale deeds Exs.P/34, P/35 and P/36. His mother Smt. Alka Gupta (defendant No. 4) also purchased the land of Survey Nos. 747 and 448 by registered sale deeds Ex.D/37 from Atul Kumar: Haritwal and he is in possession over the land of Survey Nos. 792, 802 and 809 and he had been cultivating the land through his servant Ayub. A boundary wall was constructed and a tube well was also installed. There is a gate and an electricity connection is also there. There is a house situate over the land in which his servant was residing. In his cross examination, he admitted the fact that before him agreements to sale were not executed and he was told the same facts by Dr. Haritwal. High Court and Supreme Court accepted the possession of Dr. Haritwal. 22. Dr. A. K. Haritwal (D.W.2) in his evidence deposed that his son Dr. In his cross examination, he admitted the fact that before him agreements to sale were not executed and he was told the same facts by Dr. Haritwal. High Court and Supreme Court accepted the possession of Dr. Haritwal. 22. Dr. A. K. Haritwal (D.W.2) in his evidence deposed that his son Dr. Atul Kumar Haritwal was studying in Rewa Medical College and he had executed a power of attorney in his favour, hence, he is deposing for Mr. Atul Kumar Haritwal also. An agreement to sale of Survey Nos. 747 and 748 was executed on 29-4-1976 by Avinash Chandra Pradhan and it was agreed to sale the land in a consideration of Rs. 90,000/- (Ex.D/1). He had received Rs. 25,000/-through cheque and the possession had been delivered and he had executed the agreement in the name of Dr. Atul Kumar Haritwal, who was minor and remaining part of the Survey Nos. 792, 808 and 809 was also agreed to be sold by Tilak Pradhan, Achal Pradhan and Amar Pradhan vide agreement dt. 26-11-1977. It was agreed to sale the land for consideration of Rs. 55,000/- and an amount of Rs. 10,000/- had been received through cheque as advance and the possession had also been delivered. Amar Pradhan signed the document (Ex.D/2). He further deposed that he had paid the amount to the seller. He further deposed that Vishwas Chandra Pradhan 7o Umacharan Pradhan, Pushpa Pradhan wife of Vishwas Chandra Pradhan, Ajit Pradhan, Atul Pradhan, Akshay Pradhan s/o Shri Vishwas Chandra Pradhan through Ajit Pradhan also executed an agreement on 26-7-1982 in his favour and agreed in regard to earlier agreement to sale, which is Ex.D/20. Another agreement was executed on 10-8-1982 by Ajit Pradhan, Smt. Pushpa Pradhan, Atul Pradhan and Akshay Pradhan in his favour and they accepted the earlier agreement and received an amount of Rs. 15,000/-. 23. On 19-7-1992 Smt. Shyamlata Pradhan, Achal Pradhan, Smt. Ranjana Pradhan, Ku. Sonal, Namrata, Santwava, Tilak Pradhan, Sadhna, Mamta and Alka through the guardian their mother Smt. Shyamlata Pradhan and daughters again executed an agreement (Ex.D/8) and accepted the earlier execution of document Dt. 29th April, 1976 and received Rs. 45,000/-. 15,000/-. 23. On 19-7-1992 Smt. Shyamlata Pradhan, Achal Pradhan, Smt. Ranjana Pradhan, Ku. Sonal, Namrata, Santwava, Tilak Pradhan, Sadhna, Mamta and Alka through the guardian their mother Smt. Shyamlata Pradhan and daughters again executed an agreement (Ex.D/8) and accepted the earlier execution of document Dt. 29th April, 1976 and received Rs. 45,000/-. He deposed that he had been irrigating the land and he also sought permission for the water pipe line from Railway Department, which is Ex.D/25 and D/26 and as per the case pending before the Tahsildar, he is in possession over the land. He further deposed that he had received some amount from Madhya Pradesh Rajya Bhumi Vikas Nigam, Bhopal for the purpose of levelling the land. He further deposed that he had also deposed for defendant No. 2. He further deposed that he had signed document of revenue department. 24. Ayub Khan (D.W.3) in his evidence deposed that Smt. Alka Gupta purchased the land in the year 1986 and since then he had been looking after the land which is under cultivation. Gabbar Khan (D.W.4) in his deposition has deposed that before him an agreement was executed, by which Tilak Pradhan and his family members agreed to sale 1A share in favour of Atul Kumar Haritwal, which is Ex.D/3. Lashkar Singh (D.W.5) in his evidence deposed that he had seen the possession of Dr. Anil Kumar Haritwal and Atul Kumar Haritwal for the last 27 years and for the last 8 years Mr. Ullas Kumar purchased the land. 25. Omprakash Sharma (D.W.6) in his evidence has deposed that on 29th April, 1976, an agreement was executed. Atul Kumar s/o Anil Haritwal and Avinash Chandra Pradhan s/o Umacharan, Atul Kumar s/o Anil signed the agreement and it was agreed to sale the land for a consideration of Rs. 90,000/-(Ex.D/1). Rs. 25,000/- was accepted as advance and possession had also been delivered. 26. D.W.7 - L. R. Sachdeva deposed that before him the agreement was executed on 26-11-1977 and Amar Pradhan, Achal Pradhan and Tilak Pradhan agreed to sale the land of Khasra Nos. 792, 808 and 809 in favour of Atul Kumar s/o Anil Kumar Haritwal. The agreement to sale is dated 26th November, 1977 (Ex.D/2). The possession had also been handed over. D.W.8 - Rajeev Verma is an handwriting expert, who examined the document. 27. Both the parties have filed documents also in support of their case. 792, 808 and 809 in favour of Atul Kumar s/o Anil Kumar Haritwal. The agreement to sale is dated 26th November, 1977 (Ex.D/2). The possession had also been handed over. D.W.8 - Rajeev Verma is an handwriting expert, who examined the document. 27. Both the parties have filed documents also in support of their case. These documents will be discussed subsequently. 28. Trial Court recorded a finding that the plaintiffs are the owner of the suit land. Defendants No. 1 and 2 claimed their title on the basis of Ex.D/1 and D/2 and subsequent documents executed by the family members (Ex.D/8, D/11 and Ex.D/20). It is clear that all these documents are agreement to sale. Actually no sale deed has been executed. It is well settled principle of law that agreement to sale does not confer any title, as held by the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana and another, reported in (2012) 1 SCC 656 , wherein the Hon'ble Supreme Court has held as under :- "16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas vs. S. A. Kamtam observed : (SCC pp.254-55, paras 32-33 & 37). "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in section 54 of the Transfer of Property Act. (See Ram Baran Prasad vs. Ram Mohit Hazra) The fiduciary character of the personal obligation created by a contract for sale is recognised in section 3 of the Specific Relief Act, 1963, and in section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. 33. In India, the word 'transfer' is defined with reference to the word 'convey'... The word 'conveys' in section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership." 29. Apart from this, Ex.D/1 and D/2 and other documents were executed by the minors. 33. In India, the word 'transfer' is defined with reference to the word 'convey'... The word 'conveys' in section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership." 29. Apart from this, Ex.D/1 and D/2 and other documents were executed by the minors. Atul Kumar Haritwal, who is the son of Dr. Anil Kumar Haritwal, who is said to have executed the document Ex.D/1 and D/2, was admittedly minor at that time and he had agreed to purchase the land, which is clear from documents Ex.D/1 and D/2 and evidence of Dr. A. K. Haritwal. As per section 11 of the Contract Act, the minor is not capable to execute the agreement. Section 11 of the Indian Contract Act, 1872 prescribes the parties who are competent to enter into contract. Relevant clause is as under : "11. Who are competent to contract.- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject." 30. Privy Council in the case of Ma Hnit and others vs. Hashim Ebrahim Meter and another, reported in AIR 1919 Privy Council 129, has held that the contract executed by the minor is void ab initio, it means that it could not be cured subsequently. The relevant portion is as under :- "Under the Indian Contract Act, where a minor purports to contract his alleged contract is void and not merely voidable : he is a person who is not competent to contract. See Mohori Bibi vs. Dharmadas Ghose (1) See also Mir Sarwarjan vs. Fakhriddin Mahomed Chouduri (2) Ali Hashim Meter certainly was minor and Fatima Bibi apparently was a minor when the promissory note was made. The suit should have been dismissed on that ground if there was no other ground for dismissing it." Hence, the specific performance contracts which are said to be executed by minors, are void ab initio and on this basis also the defendants No. 1 and 2 did not derive any title in the suit property. Dr. The suit should have been dismissed on that ground if there was no other ground for dismissing it." Hence, the specific performance contracts which are said to be executed by minors, are void ab initio and on this basis also the defendants No. 1 and 2 did not derive any title in the suit property. Dr. A. K. Haritwal, D.W.2 in his evidence himself admitted that his son was minor at the time of execution of agreements Ex.D/1 and D/2 and some of the family members were also minor when the other documents (Ex.D/8, D/11 and D/20) were executed. Other agreements were executed subsequently to rectify the original agreements (Ex.D/1 and D/2). Hence, all these agreements are void ab initio. Even on this ground, no title is conferred on defendants No. 1 and 2. When the defendants No. 1 and 2 had no title in the land, the sale deeds executed by them in favour of defendants No. 2(A) and 2(B) are also void ab initio. Because as per Ullas Gupta, during the pendency of the suit, defendants No. 2(A) and 2(B) had purchased the suit land vide three sale deeds. In such circumstances, it is not necessary to declare the sale deeds void because the aforesaid act and transaction is hit by section 52 of the Transfer of Property Act, which is as under :- "52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose." 31. Hon'ble Supreme Court in the case of T. G. Ashok Kumar vs. Govindammal and another, reported in (2010) 14 SCC 370 has held as under in regard to effect of section 52 of the Transfer of Property Act: "Section 52 of the TP Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. The principle underlying section 52 is that if during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognised or accepted only in regard to a party of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is, without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially. 32. 32. Hon'ble Supreme Court further in the case of Sanjay Verma vs. Manik Roy and others, reported in (2006) 13 SCC 608 has held as under :- "The principles specified in section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court." 33. From the aforesaid, it is clear that the defendants No. 2(A) and 2(B) did not receive any title on the basis of sale deeds of the lands. The fact has to be noticed that after execution of Ex.D/1 and D/2 in the year 1976 and 1977, no notice was issued by Atul Kumar Haritwal and his father Dr. A. K. Haritwal in regard to performance of contract and execution of sale deeds. Contrary to this, again further agreements (Ex.D/8, D/11 and D/20) were executed apart from the earlier agreements Ex.D/1 and D/2. This shows that the intention of the defendants No. 1 and 2 was to grab the property anyhow. If there was any real intention or plaintiffs were willing to execute the sale deeds, then there was no necessity to execute contracts of sale subsequently also in spite of sale deeds. There is no notice or evidence on record to show that the defendants No. 1 and 2 requested the plaintiffs to execute the sale deeds and they were willing to complete their part of contract. There is no notice or evidence on record to show that the defendants No. 1 and 2 requested the plaintiffs to execute the sale deeds and they were willing to complete their part of contract. Henc,'., all the transactions are sham in nature and it appears that the deeds were executed to bypass the provisions of law and the defendants anyhow wanted to get the possession and ownership of the land by hook or by crook. The trial Court has also considered the other evidence of the case. It is a fact that as per the family partition, which is not controverted by any family member, the land of Khasra Nos. 792, 808 and 809 came to Prakashchandra Pradhan and the plaintiffs are the legal heirs of Prakashchandra Pradhan. In the aforesaid partition, the sisters and mother of the plaintiffs were not party. Their share was also not determined. However, after death of Prakashchandra Pradhan, they are owners of the land as co-owners. In khasra also there is entry to this effect. In such circumstances, in our opinion, the trial Court has rightly recorded a finding in regard to ownership over the suit land in favour of plaintiff and we affirm the findings. 34. In regard to other finding, which is recorded by the trial Court in favour of the defendants that the defendants were in possession over the suit land on the date of firing of the suit, the trial Court has led much emphasis on Ex.D/1 and D/2, wherein it has been mentioned that the possession of the land was handed over to Mr. Haritwal. Further Ex.D/1 and D/2 are of the years 1976 and 1977. Thereafter, the fact of possession in regard to Dr. Haritwal has not been recorded in the khasra entries. Contrary to this, the plaintiffs filed the khasra panchshala and khatoni of the years 1981-82 to 1995-96. In all the documents, the possession of the plaintiffs family members over the suit land was recorded. It is as under :- Ex.P/2 Year 1995-96 (Samvat 2052) 1. 747 0.167 Shyamlata w/o Prakashchandra, Ranjana w/o Amar, Sonal, Namrata, Santwavna minor daughters of Amar under the guardianship of mother Ranjana, Achal & Tilak S/o Prakashchandra and Sadhna, Mamta, Alka d/o Prakashchandra share 1/3 and Ajit, Atul, Akshay S/o Vishwaschandra equal share 1/3.A 4. 808 0.993 Ranjana etc. 2. 748 0.063 _______ 5. 747 0.167 Shyamlata w/o Prakashchandra, Ranjana w/o Amar, Sonal, Namrata, Santwavna minor daughters of Amar under the guardianship of mother Ranjana, Achal & Tilak S/o Prakashchandra and Sadhna, Mamta, Alka d/o Prakashchandra share 1/3 and Ajit, Atul, Akshay S/o Vishwaschandra equal share 1/3.A 4. 808 0.993 Ranjana etc. 2. 748 0.063 _______ 5. 809 0.1259 Mahaveer Singh S/o Saheb Singh 3. 792 0.679 Ranjana w/o Amar, Sonal, Namrata, Santwavna minor daughters of Amar under the guardianship of mother Ranjana, ½ share, Achal, Tilak S/o Prakashchandra share 2/3. Ex.P/3 Samvat 2039 1. 0.334,0.69, 0.533, 0.303,0.209 0.073, 0.679, 0.993. Amar etc. Ex.P/4 Samvat 2026-30 1. 792 1679 Prakashchandra and others. 3. 809 1251 Prakashchandra, Kailashchandra, Avinashchandra Vishwaschandra s/o Umacharan. 2. 808 1893 _______ Ex.P/5 Samvat 2026-27 1. 61/2 2.90 Prakashchandra, Kailashchandra, Avinashchandra Vishwaschandra s/o Umacharan 6. 752 0.052 Prakashchandra, Kailashchandra, Avinashchandra Vishwaschandra s/o Umacharan 2. 742 0.010 _____ 7. 754 0.028 _______ 3. 744 0.084 _____ 8. 755 0.063 _______ 4. 746 0.031 _____ 9. 757 0.010 _______ 5. 748 0.293 _____ 10. 766 0.010 _______ Ex.P/6 Samvat 2026-27 1. 767 0.63 Prakashchandra etc. 6. 825 0.021 Prakashchandra etc. 2. 792 0.679 _____ 7. 826 0.021 _______ 3. 808 0.993 _____ 8. 828 0.021 _______ 4. 821 0.031 _____ 9. 830 0.052 _______ 5. 824 0.125 _____ _______ Ex.P/7 Samvat 2026-27 1. 891 0.21 Prakashchandra etc. 4. 839 0.010 Prakashchandra etc. 2. 833 0.010 _____ 5. 841 0.031 _______ 3. 836 0.052 _____ 6. 842 0.021 _______ 7. 843 0.021 Prakashchandra etc. 9. 730 0.073 Prakashchandra etc. 8. 844 0.010 _____ 10. 832 0.63 _______ Ex.P/8 Samvat 2026-27 1. 891 0.84 Prakashchandra etc. 6. 1023 0.010 Prakashchandra etc. 2. 895 0.042 _____ 7. 1025 0.010 _______ 3. 926 0.105 _____ 8 1026 0.031 _______ 4. 828/3 0.021 _____ 9. 1051 0.042 _______ 5. 928 0.063 _____ 10. 1063 0.42 _______ Ex.P/9 Samvat 2026-27 1. 1066 0.031 Prakashchandra etc. 6. 1073 0.021 Prakashchandra etc. 2. 1067 0.031 _____ 7. 1075 0.334 _______ 3. 1068 0.031 _____ 8 1077 0.084 _______ 4. 1069 0.314 _____ 9. 1079 0.0115 _______ 5. 1071 0.010 _____ 10. 1080 0.084 _______ Ex.P/10 Samvat 2025 1. 61/1 111 Prakashchandra etc. 7. 442 2/4 Prakashchandra etc. 2. 62 3 _____ 8. 741 3114 _______ 3. 65 6 _____ 9 743 2112 _______ 4. 435 71112 _____ 10. 745 111 _______ 5. 437 3114 _____ 11. 747 1311 _______ 6. 1079 0.0115 _______ 5. 1071 0.010 _____ 10. 1080 0.084 _______ Ex.P/10 Samvat 2025 1. 61/1 111 Prakashchandra etc. 7. 442 2/4 Prakashchandra etc. 2. 62 3 _____ 8. 741 3114 _______ 3. 65 6 _____ 9 743 2112 _______ 4. 435 71112 _____ 10. 745 111 _______ 5. 437 3114 _____ 11. 747 1311 _______ 6. 438 214 _____ 12. 749 111 _______ Ex.P/11 Samvat 2025 1. 750 2112 Prakashchandra etc. 2. 751 1/3 Prakashchandra etc. 3. 753 4 Prakashchandra etc. 8. 761 111 Prakashchandra etc. 4. 756 113 _____ 9 762 74 _______ 5. 758 11 _____ 10. 768 11 _______ 6. 759 11 _____ 11. 820 72 _______ 7. 760 111 _____ 12. 827 11 _______ Ex.P/12 Year 1991-92 1. 61/1 747 748 Shyamlata w/o Prakashchandra, Amar, Achal, Tilak minor sons of Prakashchandra. Sadhna, Mamta, Alka minor D/o Prakashchandra under guardianship of Shyamlata ¼ share, kailashchanra, Avinashchandra, Vishwaschandra, S/o Umacharan Pradhan equal share 3/4 Ex. P/13 Year 1985-86 1. 61/1 747 748 Shyamlata w/o Prakashchandra, Amar, Achal, Tilak minor Sadhna, Mamta, Alka D/o Prakashchandra under guardianship of Shyamlata ¼ share, kailashchanra, Avinashchandra, Vishwaschandra, S/o Umacharan Pradhan equal share 3/4 Ex.P/14 Year 1982-83 1. 61/1 747 748 Shyamlata w/o Prakashchandra, Amar, Achal, Tilak minor Sadhna, Mamta, Alka minor D/o Prakashchandra under guardianship of Shyamlata ¼ share, kailashchanra, Avinashchandra, Vishwaschandra, S/o Umacharan Pradhan equal share 3/4 Ex.P/15 Year 1981-82 (Samvat 2038) 1. 62, 65, 792, 808, 892, 896, 898, 928/1, 928/2, 1022, 1027, 1028, 1064, 1065, 1068/1, 1068/2, 1069/1, 1069/2, 1070, 1072, 1076, 1078, 1084, 1087/1, 1088, 1090. Ranjana w/o Amar, Sonal, Namrata, Santwavna minor daughters under the guardianship of mother Ranjana 1/3 share, Achal, Tilak S/o Prakashchandra equal share 2/3 Ex.P/16 Year 1981-82 (Samvat 2037) 1. 62, 65, 792, 808, 892, 896, 898, 928/1, 928/2, 1022, 1027, 1028, 1064, 1065, 1068/1, 1068/2, 1069/1, 1069/2, 1070, 1072, 1076, 1078, 1084, 1087/1, 1088, 1090. Amar (dead) and Achal, and Tilak S/o Prakashchandra Pradhan. 35. For the first time, the possession of Dr. Haritwal was recorded in the year 1994-95 (Ex.P/2). Atul Haritwal himself submitted an application before the Tahsildar in regard to recording his possession in the year 1993. It is clear from the order of Sub Divisional Officer passed in the Case No. 28/93-94/Appeal on 19-9-2001 (Ex.P/38-A). It is mentioned in the order that Dr. Haritwal was recorded in the year 1994-95 (Ex.P/2). Atul Haritwal himself submitted an application before the Tahsildar in regard to recording his possession in the year 1993. It is clear from the order of Sub Divisional Officer passed in the Case No. 28/93-94/Appeal on 19-9-2001 (Ex.P/38-A). It is mentioned in the order that Dr. Atul Haritwal submitted an application on 6-8-1993 in regard to recording his possession over the land. That was allowed by the Naib Tahsildar vide order dt.7-10-1993. However, the SDO set aside the order dt.7-10-1993 and ordered that the appellant shall be recorded as Bhumiswami. Another order was passed on 19-9-2001 in Appeal No. 29/93-94/Appeal (Ex.38A and Ex.P/38B). In the aforesaid appeal also the order of Naib Tahsildar dt. 7-10-1993 was set aside. Against the aforesaid order, the appeals were filed by Smt. Alka Gupta and Ullas Gupta before the Additional Commissioner Gwalior, which were registered as Appeals No. 209/2001-2002/Appeal and 210/2001-2002/Appeal. A copy of the order passed by the Additional Commissioner on 23-7-2003 is Ex.P/39. The Appellate Court remanded the matter back to the Tahsildar to pass appropriate order. From the aforesaid proceedings, it is clear that in khasra entries, the entry of possession of the defendants of the year 1994 could not be treated as in accordance with law because the entries were recorded on the basis of Naib Tahsildar order and the same was quashed in appeal and the matter was remanded back to the Naib Tahsildar. Hence, it cannot be said that the defendants had been in possession over the land since 1976 and 1977. 36. In regard to oral evidence of the witnesses of the defendants, it is clear that defendants No. 3 and 4 submitted that they got the possession of the land after execution of sale deeds in the year 1996 during pendency of the suit proceeding. Admittedly, Dr. Atul Kumar Haritwal did not enter into witness box. It is mentioned in Ex.D/1 and D/2 that the possession was handed over to Dr. Atul Kumar Haritwal, however, he did not support the aforesaid version because he did not enter into witness box. Defendant No. 1 entered into witness box and he deposed that he was tendering his evidence on his behalf and also on behalf of defendant No. 2 Dr. Atul Kumar Haritwal, but because Dr. Atul Kumar Haritwal, however, he did not support the aforesaid version because he did not enter into witness box. Defendant No. 1 entered into witness box and he deposed that he was tendering his evidence on his behalf and also on behalf of defendant No. 2 Dr. Atul Kumar Haritwal, but because Dr. Atul Kumar Haritwal, who is his son, executed the power of attorney in his favour, therefore, on the basis of aforesaid power of attorney, defendant No. 1 had no power to depose on behalf of the defendant No. 2 as held by the Hon'ble Supreme Court of India in the case of Janki Vashdeo Bhojwani vs, Indusind Bank Ltd., reported in 2005(1) MPLJ (S.C.) 421 = 2004 AIR SCW 7064, wherein the Hon'ble Supreme Court has aeld as under :- "Where in a recovery proceeding before the Debt Recovery Tribunal against the husbands of the appellants wives the appellants had filed objections against the attachment of house property and the Supreme Court remanded the matter and held that the burden of proving that appellants have a share in property will be on the appellants, it was obligatory on the appellants to have entered the witness box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. The Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, it could be said that the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. The Tribunal has erred in holding that they have a share and are co-owners of the property in question." Hence, the evidence of defendant No. 1 could not be read as evidence on behalf of defendant No. 2 also. 37. The Tribunal has erred in holding that they have a share and are co-owners of the property in question." Hence, the evidence of defendant No. 1 could not be read as evidence on behalf of defendant No. 2 also. 37. In regard to possession, the only evidence of documentary evidence remains about the permission for talcing water from Railways Department in regard to irrigation of land (Ex.D/25 and D/26) and about the loan from M. P. Rajya Bhumi Vikas Nigam, Bhopal for levelling the land (Ex.D/21 to D/23). However, in the aforesaid documents, it is not mentioned that these are the documents in regard to the suit land. Hence, on the basis of these documents, the defendants cannot substantiate their claim that they have taken possession of the land. These documents also could not confer the proof of evidence of possession. Contrary to this, the plaintiffs specifically pleaded that on 14-8-1993, the defendants No. 1 and 2 came on the spot and between the night of 14-8-1993 and 15-8-1993, they have forcefully destroyed the crop. To this effect, a report at the police station Purani Chhavni was also lodged (Ex.P/25 and P/26). Apart from this, the Competent Authority under the Urban Administration Ceiling Act, passed an order on 8-4-1993 (Ex.P/17). In the aforesaid order, the name of the plaintiffs/appellants have been mentioned as owners of the land of Khasra Nos. 792 and 808. In the order, it is mentioned that some land was in excess and rest of the land was treated to be the ownership of the plaintiffs and thereafter the order dt. 17-6-1993 (Ex.P/18) was passed by the Additional Collector Competent Authority. In regard to the land of khasra No. 809, a civil suit was filed by the plaintiff, it was decreed vide judgment dt. 10-9-1974 passed in Civil Suit No. 185A/75 (Ex.P/19). In the aforesaid civil suit, Mahavir Singh s/o Saheb Singh and Moti S/o Akua were the parties and in the aforesaid civil suit, the decree of permanent injunction was passed and the trial Court decreed the suit to the effect that plaintiff Tilak Pradhan, his brothers, sisters and mother are the co-owners of the land and that judgment has not been set aside, hence, that is the final finding. In the aforesaid judgment, the decree of permanent injunction was also passed. 38. Hon'ble Supreme Court in the case of H. Siddiqui (Dead) by LRs. In the aforesaid judgment, the decree of permanent injunction was also passed. 38. Hon'ble Supreme Court in the case of H. Siddiqui (Dead) by LRs. vs. A. Ramalingam, reported in 2011(3) MPLJ (S.C.) 83 - (2011) 4 SCC 240 has held as under in regard to power of Appellate Court : "21. The said provisions provide guidelines for the Appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken, into consideration. Thus, it must be evident from the judgment of the Appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the Appellate Court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the Appellate Court are well founded and quite convincing. It is mandatory for the Appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first Appellate Court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh vs. Kalyan Singh, Girijanandini Devi vs. Bijendra Narain Choudhary, G. Amalorapavam vs. R. C. Diocese of Madurai, Shiv Kumar Sharma vs. Santosh Kumari and Gannamani Anasuya vs. Parvatini Amarendra Chowdhary). 22. In B. V. Nagesh vs. H. V. Sreenivasa Murthy, while dealing with the issue, this Court held as under : (SCC p. 531, para 4). "4. The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. "4. The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. Sitting as a Court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari vs. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar vs. Sangram SCC p. 758, para 5)". 39. From the aforesaid judgment, it is clear that the Appellate Court has power to re-appreciate the evidence and to reverse the findings of fact recorded by the trial Court if they are contrary to law. In the present case, the trial Court has recorded the finding in regard to possession of the defendants No. 1 and 2 over the suit land on the basis of Ex.D/1 and D/2. However, these findings are perverse because the aforesaid documents were executed in the year 1976 and 1977. However, upto the year 1992, no such entry of possession was recorded. The defendants did not produce any document before the Court in the suit that they were in possession except the oral evidence. Defendant No. 2 himself submitted an application to the Naib Tahsildar in the year 1993 to record his possession. On the basis of that application, Naib Tahsildar ordered for recording of possession of the defendants No. 1 and 2 over the suit land. That order was set aside in appeal by the SDO and thereafter the matter was remanded back. It means that the defendant No. 1 himself was not confident that he was in possession over the said land upto the year 1992. That order was set aside in appeal by the SDO and thereafter the matter was remanded back. It means that the defendant No. 1 himself was not confident that he was in possession over the said land upto the year 1992. Even apart, in the ceiling proceedings (Ex.P/17), the order was passed in the year 1993 and it is mentioned in the order that the plaintiffs were owners of the land of Khasra Nos. 792 and 808. Hence, that land was included in the land of ceiling proceedings. Some portion of the land was declared as surplus land. Rest of the land was left out in favour of the plaintiffs. This order of the ceiling authority is of the year 1993 and this order has affirmed the possession of the plaintiffs. The suit was filed on 16-8-1993. There cannot be any oral evidence admissible against the aforesaid order of the competent authority, which was passed under the provisions of Urban Land Ceiling Act, in which the competent authority declared that the plaintiffs are entitled to receive particular area of the land including the aforesaid survey numbers. This is the proof of possession of the plaintiffs. Hence, in our opinion, the trial Court has committed an error of law in holding that the plaintiffs were not in possession over the suit land. 40. It has been argued by the learned senior counsel appearing on behalf of the defendants that the trial Court has refused the interim injunction in favour of the plaintiffs, that was upheld in appeal before this Court and an SLP has also been dismissed by the Supreme Court. However, the aforesaid interim order was passed on the basis of some affidavit. At that time, there was no documentary or oral evidence led before the trial Court. The findings of the trial Court under Order 39, Rules 1 and 2, Civil Procedure Code were based on primary evidence in the shape of affidavits. Hence, those findings cannot be said to be final findings and conclusive at the time of final adjudication of the case. 41. The plaintiffs themselves filed an application for amendment under Order 6, Rule 17, Civil Procedure Code, in which they have pleaded that the defendants had tried to dispossess them and they had taken possession forcefully during the pendency of the suit and thus the plaintiffs sought amendment. 41. The plaintiffs themselves filed an application for amendment under Order 6, Rule 17, Civil Procedure Code, in which they have pleaded that the defendants had tried to dispossess them and they had taken possession forcefully during the pendency of the suit and thus the plaintiffs sought amendment. That amendment was refused by the trial Court on the ground that if during the suit proceedings it is found that the plaintiffs are in possession over the suit land, then their possession could be restored. 42. Hon'ble Supreme Court in the case of Mst. Rukhmabai vs. Lola Laxminarayan and others, reported in AIR 1960 SC 335 has held as under :- "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. AIR 1930 PC 270 and AIR 1931 PC 9 and AIR 1931 PC 89 , Foil. Where there are successive invasions or denials of a right, the right to sue under Art. 120 accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. AIR 1938 Mad 193 , Ref." 43. Hon'ble Supreme Court further in the case of S. R. Ejaz vs. T. N. Handloom Weavers' Co-operative Society Ltd., reported in (2002) 3 SCC 137 held as under :- "7. From the facts narrated above, it is apparent that pending suit filed by the respondent for evicting the appellant, the respondent took forcible possession of the tenanted premises, for that purpose the appellant had lodged criminal complaint on the same day and as no action was taken, he had informed various authorities immediately. Despite the representation made to the higher authorities as the police had not taken any action, the appellant preferred writ petition before the High Court and the High Court directed CB/CID to investigate the case. Despite the representation made to the higher authorities as the police had not taken any action, the appellant preferred writ petition before the High Court and the High Court directed CB/CID to investigate the case. Thereafter the charge-sheet was submitted; the Government granted sanction; however, for the reasons best known to it, the Government withdrew the criminal proceedings. This would clearly establish that the appellant was in possession of the premises and pending suit, he was forcibly dispossessed. Hence, in such circumstances if matter is remanded for reconsideration after a lapse of 15 years, the whole purpose of summary suit under section 6 of the Act for taking possession would be frustrated. The facts were eloquent and no further evidence was necessary nor was anything required to be re-appreciated. It is to be stated that admittedly there is no document to indicate that the appellant willingly handed over the possession of the suit premises. If the appellant was prepared to hand over the possession of the suit premises willingly a consent decree would have been obtained in a pending suit which was filed in 1978. In any case, there was no necessity of taking possession by use of force in presence of the police. If the appellant had willingly handed over possession, he would not have immediately lodged the criminal complaint and made representation to the higher authorities for taking action nor would he have filed a writ petition for appropriate directions. Hence, this contention does not deserve to be accepted by any process of reasoning. 8. In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and "might would be right" instead of "right being might". If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and "might would be right" instead of "right being might". This Court in State of U. P. vs. Maharaja Dharmander Prasad Singh dealt with the provisions of the Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of the Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law. 9. In this view of the matter, this appeal is allowed. Impugned judgment and order passed by the High Court is set aside. The suit filed by the plaintiff-appellant for restoration of possession of the suit property is decreed. The respondent is directed to hand over the possession of the premises within one month to the appellant. Further, we strongly deprecate the high-handed action taken by the respondent in taking forcible possession from a tenant and direct the respondent to pay Rs. 50,000 as costs to the appellant." 44. Hon'ble Supreme Court in the case of Dhanpal Balu Lhawale and other vs. Adagouda Nemagouda Patil (dead) by Prop. LRs., reported in (2009) 7 SCC 457 , has held as under :- "7. During the pendency of this appeal, IA No. 1 under Order 6, Rule 17 read with section 151, Civil Procedure Code has been filed by the appellant seeking to amend the prayer clause in the special leave petition as originally laid. LRs., reported in (2009) 7 SCC 457 , has held as under :- "7. During the pendency of this appeal, IA No. 1 under Order 6, Rule 17 read with section 151, Civil Procedure Code has been filed by the appellant seeking to amend the prayer clause in the special leave petition as originally laid. The amendment sought is reproduced below: "In the circumstances obtaining in this case, this Hon'ble Court be pleased to set aside the judgment of the Hon'ble High Court of Karnataka in RSA No. 73 of 1997 dated 7-4-1999 by granting the relief of injunction in favour of the petitioners or in the alternative, this Hon'ble Court be pleased to grant an order directing the respondent to hand over possession of the suit schedule property to the petitioners." In the facts of the case, we are of the opinion that this amendment application needs to be allowed in the face of the fact that, as of today, the claim of the respondent-plaintiff Adagouda Nemagouda, on the basis of the will and in the alternative, on the basis of a tenancy has been rejected and his status is only that of a trespasser." 45. The trial Court, in our opinion, has not considered the vital documents including the order passed by the competent authority under the Urban Land Ceiling Act. Hence, the trial Court has ignored important piece of evidence. From the aforesaid evidence and discussion, in our opinion, the findings recorded by the trial Court against Issue No. 4 that the plaintiffs were not in possession of the suit land is contrary to law and the trial Court has committed an error of law in rejecting the application of the plaintiffs filed under Order VI, Rule 17 of Civil Procedure Code. The application filed by the plaintiffs under Order VI, Rule 17, Civil Procedure Code is hereby allowed. 46. On the facts of the case, it is clear that the defendants No. 1, 2, 2(A) and 2(B) had no title over the land. They have tried to establish then- title on the basis of agreements to sale. However, the original agreements (Ex.D/1 and D/2) were executed by minor defendant No. 2, hence, the aforesaid agreements were void ab initio. On the facts of the case, it is clear that the defendants No. 1, 2, 2(A) and 2(B) had no title over the land. They have tried to establish then- title on the basis of agreements to sale. However, the original agreements (Ex.D/1 and D/2) were executed by minor defendant No. 2, hence, the aforesaid agreements were void ab initio. Even though the agreements of specific performance of contract do not confer any title, which is well settled principle of law and subsequently, during the pendency of the suit, the defendants No. 1 and 2 executed the sale deeds in favour of defendants No. 2(A) and 2(B), which are also void ab initio. There is also no convincing finding regarding the possession of the defendants over the suit land upto the year 1992. This shows that the defendants No. 1, 2, 2(A) and 2(B) anyhow wanted to grab the property contrary to well settled principle of law. Thus from the aforesaid facts, it is clear that defendants No. 1, 2, 2(A) and 2(B) had a malice in law which is established from the facts because they tried to establish their title as held by the Hon'ble Supreme Court in the case of Roop Singh Negi vs. Punjab National Bank and others, reported in 2009 (2) SCC 592 . However, even if their version is accepted completely, then also there is no iota of suspicion left as the defendants had not derived their title at any point of time. During the pendency of the suit proceedings, they had taken the possession from the plaintiffs of the suit land and FIR was lodged and there is order of competent authority under the Urban Land Ceiling Act. Hence, it is the duty of the Court to restore the possession of the plaintiff over the suit land. 47. On the basis of above discussion, in our opinion the trial Court has rightly rejected the counter-claim filed by the defendants. The respondents have also filed cross objections before this Court on the basis of the findings recorded. The cross objections filed by the respondents are hereby rejected, although the cross objections have been filed belatedly but when we have considered the case on merits, hence, it is not necessary to pass order on limitation because the cross objection is not maintainable. The cross objections filed by the respondents are hereby rejected, although the cross objections have been filed belatedly but when we have considered the case on merits, hence, it is not necessary to pass order on limitation because the cross objection is not maintainable. The argument advanced by the learned senior counsel appearing on behalf of the respondents No. 3 and 4 that the respondents have completed Bhuimswami rights on the basis of section 169 of M.P. Land Revenue Code is also not tenable because no such issue in this regard was framed before the trial Court and the land was never given on rent by the plaintiffs to the respondents No. 3 and 4. 48. The appeal filed by the appellants is hereby allowed. The findings recorded by the trial Court against issues No. 2, 3, 4 and 5(A) are hereby set aside. The findings recorded by the trial Court against Issue No. 1 is upheld. The suit filed by the plaintiffs/appellants is hereby decreed that the plaintiffs are owner of the suit land and defendants/respondents are directed to restore the possession of the plaintiffs within a period of four weeks from the date of passing of the judgment. The respondents/defendants are further restrained by way of permanent injunction not to interfere in the peaceful possession of the plaintiffs over the suit land. Looking to the facts of the case, parties shall bear their own costs. Appeal allowed.